No 'Roe' replay on affirmative action

Let me explain. Affirmative action began as an attempt to compensate for the effects of past discrimination against African Americans. Forty years after the passage of the Civil Rights Act, however, that justification is increasingly difficult to maintain. Proponents have accordingly reinvented the rationale. Affirmative action has metastasized into "diversity," in whose name an arbitrary selection of favored minorities (at Michigan, blacks, Hispanics and Native Americans) is entitled to favors denied other Americans purely because of their ethnicity and race.

In the Michigan law school case, the court justified allowing official racial discrimination -- the majority opinion itself uses the term "racial preferences" -- in order to achieve diversity. Why? Because a "critical mass" of minorities improves the educational environment. For this, the justices relied on some social science. In fact, there is contrary social science. But the real question is: Should we be violating the fundamental principle of equality before the law in order to attain a speculative, minor improvement in the study environment of a university?

And even if we grant the existence of this marginal gain, it is grossly outweighed by the huge social, moral and human costs of racial discrimination:

(1) The stigmatization of all minority achievement, as it gratuitously opens the question of whether any minority person in high position got there by merit or by skin color.

(2) The racial antagonism automatically engendered when race is used to prefer or penalize innocent citizens.

(3) The ruin of a legion of minority students who are artificially promoted to institutions where they cannot compete academically and where they therefore fail -- when they could have been brilliant successes at institutions more suited to their academic abilities. Before affirmative action was banned at the University of California at Berkeley, the non-graduation rate for whites was 16 percent; for blacks it was 42 percent. Guilty white liberals could thus point proudly to high minority admissions numbers, caring nothing about the fact that they had turned almost half that cohort -- bright young people who might have succeeded elsewhere -- into failures.

Why, then, am I glad the court, for all of its sophistry, upheld affirmative action? For those who believe that affirmative action, for all of its noble purposes, is extraordinarily destructive to both its beneficiaries and its victims, and to both race relations and constitutional principles, it is tempting to wish it all swept away by the Supreme Court.

It is a temptation to be resisted. Issues of this magnitude should never be decided by nine robes. Affirmative action needs to be dealt with by the people in the legislatures and in referendums. I believe that the current dispensation is a travesty. But a very substantial portion of the population reads the Constitution -- and the nation's needs -- quite differently. Under these circumstances, the issue should not be settled by judicial fiat.

We learned from the abortion issue the doleful consequences of such judicial imperialism. In 1973 changes in public opinion and action in state legislatures were altering the landscape on abortion. At which point the court stepped in and took the issue out of the political arena. As Ruth Bader Ginsburg argued before she ascended to the Supreme Court, "Roe v. Wade . . . halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue." The result has been 30 years of strife and agitation, as a disenfranchised minority continues to carry the fight against policy for which it has no political recourse.

It would be a pity to reenact the experience with affirmative action. Popular referendums have already abolished racial preferences in California and Washington state. Such acts of abolition enjoy the kind of political legitimacy that -- as conservatives, of all people, should acknowledge -- is lacking when handed down by unelected judges.

Let's remember: The court did not mandate affirmative action. It only permitted affirmative action. The people and the politicians are entirely empowered to do away with it. True, the abolition movement has slowed since its successes in California and Washington, and most of the political class -- both Democratic and Republican -- lacks the courage to take up the fight.

But that should tell us something. It tells us that most Americans prefer to abide the current state of unprincipled, muddied racial incoherence so brilliantly reflected in the Supreme Court's Michigan law school decision.

It tells us, too, where the problem lies. We should not be blaming the Supreme Court for refusing to do for us what we the people, in Congress (and state legislatures) assembled, refuse to do for ourselves.